Mentzer: Sen. Ron Johnson's Obamacare lawsuit, explained (column)

A fight about whether congressional staffers should be forced to take a pay cut Congress didn't intend.

Ron Johnson

OK, you are an employer who offers health insurance. You decide you'd rather not offer health insurance and instead will have your employees purchase their own insurance via the newly established Obamacare exchanges. If your workforce is desperate - and these are, after all, desperate times - you might be able to get away with just declaring that health insurance from you is over and they'd better get onto healthcare.gov and fend for themselves, because you are not going to be paying toward their health insurance anymore.

On the other hand, you might lose a lot of employees that way. It would, after all, be a massive, across-the-board pay cut.

What you might do instead is offer to take some or all of the money you formerly were spending on health insurance and instead give it to your employees to use to buy their own private plans on the exchanges. You're still saving the money and headache of carrying their insurance; they don't get stuck with that big pay cut, and they still have insurance.

Admittedly, this hypothetical requires you to assume that your employees find the website in fine, working order and that the insurance options they encounter on the exchange are satisfactory; I am well aware that this situation will not always be the case. Still, as a theory of how things could go, it basically works.

Unless the employer is the federal government, says U.S. Sen. Ron Johnson. In that case, Johnson argues with a newly announced lawsuit against the federal government, the employer must force its employees to eat a big pay cut by having to purchase their own insurance with no help whatsoever from the employer.

That's it; that's the lawsuit. Force a big pay cut on congressional staffers. That's what Johnson wrote an op-ed for the Wall Street Journal and held a press conference about this week. He argues that the only pay members of Congress and their staffs should receive are the federal poverty-based subsidies, which apply only to those making $45,000 a year or less. The employer, which in this case is the federal government, should not be able to chip in even though it has always paid a large share of employees' health insurance costs before.

Johnson's legal argument is that the law as written does not authorize the government to act the way other employers would act. In fact, the language of the Affordable Care Act, a.k.a. Obamacare, is ambiguous on this point; Johnson has a different interpretation than the federal Office of Personnel Management, which ruled last year that the law does allow the government to continue to contribute to employees' health care. But no one is arguing that Congress intended to pass a pay cut when it included the requirement that staffers buy insurance via Obamacare. Congress can pass a pay cut any time it wants, and it hasn't.

Maybe it's silly and maybe it's not, but there is no way this is in the top 100 most important provisions of the law. I know some congressional staffers and they are nice people; they're also resourceful and I'm sure they'd find a way to survive if forced to forgo employer payments for health insurance. That would seem a little unfair to me, but there are many greater injustices in the world.